Hetch Hetchy Lawsuit Goes Down the Drain

     FRESNO, Calif. (CN) — An environmentalist’s “profound commitment to species protection” can’t save a lawsuit challenging the way the National Park Service runs the Hetch Hetchy power project, a federal judge ruled this week.
     The Hetch Hetchy dam and power project have been among the most controversial federal projects in California for nearly a century. The dam on the Tuolumne River, completed in 1923, flooded a pristine valley in northwest Yosemite National Park. In 1934 it began delivering water to San Francisco through a 167-mile pipeline. Environmentalists continue to demand, as they have for decades, that the dam be removed, the valley restored and the Tuolumne to flow down to the San Joaquin River and Sacramento Delta.
     The Center for Environmental Science Accuracy and Reliability (CESAR) and its member Jean Sagouspe sued the National Park Service in 2014, claiming its water management violated the Endangered Species Act.
     Among other things, the plaintiffs said, the National Park Service did not consult with the Fish and Wildlife Service to determine how the diversions would affect endangered species.
     “As a result, we can’t really tell what’s going on with the flows that may affect the Delta smelt and other Delta species,” CESAR executive director Craig Manson said in an interview.
     Salmon, sturgeon and smelt and other endangered and threatened fish depend on stream flows from the Tuolumne and San Joaquin rivers, and diverting the water constitutes a “take” of the species under the Endangered Species Act, CESAR claimed.
     But on Monday, U.S. District Judge Lawrence O’Neill said the environmentalists have no standing to sue.
     Sagouspe’s declaration that he has a “profound commitment to species protection” and performs “work of species protection” is insufficient to show an actual injury.
     “The court cannot find — and plaintiffs do not provide — any authority that suggests this could meet plaintiffs’ burden of proof at this stage of litigation,” O’Neill wrote in a 53-page ruling.
     Sagouspe also failed to show he had standing as a farmer in the Central Valley whose operations are affected by diverting water from the Tuolumne River.
     Sagouspe’s farms are irrigated with water from the Central Valley Project, which is managed by the Bureau of Reclamation, not the National Park Service, O’Neill pointed out.
     “There are countless individuals and entities with contracts for CVP water. Plaintiffs offer no reason for the court to assume (much less conclude) that Sagouspe’s water supply would be impacted in any way if the relief they request is granted,” the judge wrote.
     CESAR, established in 2009 to “focus on gathering the best science to effectively protect the environment and our economy,” cannot establish standing simply by stating that its goals are “threatened” by Park Service decisions at Hetch Hetchy, O’Neill said.
     “CESAR does not argue, for instance, that defendants’ allegedly unlawful conduct has led to a drain on CESAR’s resources or has otherwise affected its ability to pursue its mission,” O’Neill wrote.
     Even if the environmentalists had standing, they cannot prove that any protected species faces imminent harm from the water diversion. “To be blunt, the ‘evidence’ put forth by plaintiffs on the subject is either not evidence or is grossly insufficient to satisfy plaintiffs’ burden,” O’Neill ruled.
     CESAR’s Manson, not surprisingly, was not pleased, but said the case may not be over. He called O’Neill’s ruling a “largely procedural decision, in that he did not reach in any meaningful way the substantive issues.”
     “He spent a lot of time dealing with procedural issues and not really the substance of the case, which means there may be an opportunity to revisit one of those substantive issues one of these days,” Manson said.
     The National Park Service did not immediately return a request for comment.

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